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United States v. Smitherman

United States District Court, W.D. New York

November 20, 2014

UNITED STATES OF AMERICA,
v.
TRE SMITHERMAN, Defendant. UNITED STATES OF AMERICA,
v.
KENNETH PETTWAY, JR., et al., Defendants.

DECISION AND ORDER

WILLIAM M. SKRETNY, Chief District Judge.

1. Presently before this Court is the Government's motion to consolidate the indictments in these two cases. Rule 13 of the Federal Rules of Criminal Procedure permits a court to order "that separate cases be tried together as though brought in a single indictment... if all offenses and all defendants could have been joined in a single indictment." Multiple offenses are appropriately charged jointly when they Aare of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan.@ Fed. R. Crim. P. 8(a). An indictment may charge multiple defendants in one or more counts, together or separately, when "they are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses." Fed. R. Crim. P. 8(b). In the Second Circuit, a Acommonsense rule@ is applied Ato decide whether, in light of the factual overlap among charges, joint proceedings would produce sufficient efficiencies such that joinder is proper notwithstanding the possibility of prejudice to [one or more of] the defendants resulting from the joinder." United States v. Shellef, 507 F.3d 82, 98 (2d Cir. 2007); United States v. Turoff, 853 F.2d 1037, 1044 (2d Cir. 1988)

2. Here, Defendant Smitherman is charged in Indictment 14-cr-155S ("Smitherman Indictment") with murdering Charles Myles-Jones on November 29, 2010 for the purpose of gaining entrance to an enterprise engaged in racketeering activity in violation of 18 U.S.C. § 1959(1). (Count 1.) He is further charged with carrying and using a firearm in the commission of that crime. (Count 2.) The Government argues that joinder with the Fourth Superseding Indictment in 12-CR-103 ("Pettway Indicment") is proper because the alleged Aenterprise@ and the Aracketeering activity@ are the same in both cases. The indictments each describe the enterprise as:

a group of individuals associated in fact for which the members and associates of the enterprise variously referred to themselves by, among other names, "the Bailey Boys, " "Bailey and Minnesota, " and "Six-Deuce, " and which are hereinafter referred to as "the Bailey Boys Enterprise." The Bailey Boys Enterprise, which was and is a violent street gang, constituted an ongoing organization whose members function as a continuing unit for the common purpose of achieving the objectives of the enterprise. This enterprise was engaged in, and its activities affected, interstate and foreign commerce.

Both indictments describe the activity of the Bailey Boys' members and associates in support of the enterprise as:

1) Obtaining and then distributing marijuana, heroin, cocaine and cocaine base (also known as "crack") in the gang's territory to enrich members of the Bailey Boys Enterprise;
Robbing individuals in order to obtain their money and their valuables, also to enrich members of the Bailey Boys Enterprise; and
3) Committing acts of violence including conspiring to murder, attempting to murder and murdering members of rival gangs and non-members of the Bailey Boys Enterprise to avenge acts of violence perpetrated against members of the Bailey Boys Enterprise and committing these same acts of violence against individuals who engaged in or attempted to engage in criminal activity in the gang's territory and against anyone who committed any act that the members of the Bailey Boys Enterprise viewed as a threat or an insult to the enterprise or to an individual member of the enterprise.

The Smitherman Indicment further alleges that:

The Bailey Boys Enterprise, through its members and associates, engaged in racketeering activity as defined in Title 18 United States Code, Sections 1959(b)(1) and 1961(1), namely, acts involving (1) murder in violation of New York State Penal Laws; (2) robbery in violation of New York State Penal Laws and (3) trafficking in controlled substances in violation of Title 21, United States Code, Sections 841 and 846.

More detail is provided in the Pettway Indictment's racketeering charge (Count 1):

Beginning sometime in 2004, the exact date being unknown, and continuing thereafter to the date of the return of this Fourth Superseding Indictment, in the Western District of New York, and elsewhere, the defendants, together with others, both known and unknown to the grand jury, being persons employed by and associated with the Bailey Boys Enterprise, which enterprise was engaged in, and the activities of which affected, interstate and foreign commerce, did unlawfully and knowingly conduct and participate, directly and indirectly, in the conduct of the affairs of the enterprise through a pattern of racketeering activity as defined in Title 18, United States Code Sections 1961(1) and 1961(5).

Twelve predicate racketeering acts are alleged in Count 1.

The Pettway Indicment further charges the ten named Defendants with an additional 37 counts, including racketeering conspiracy, conspiracy to possess and distribute cocaine, firearms possession and use, and 19 counts of committing a violent crime in aid of racketeering in violation of 18 U.S.C. § 1959. Each of the ' 1959 violent crimes occurred after Smitherman allegedly murdered Myles-Jones on November 29, 2010, with the first occurring a month later on December 30, 2010 and the last occurring a year and a half later in May 2012. Ten of these incidents also serve as predicate acts in the racketeering charge against Defendants Pettway, Tyrone Brown, Tariq Brown, Allen, and Washington. ...


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